Court of Appeal considers Family Court’s approach to domestic abuse and sexual violence
19 Jan 2021
Important review case comes in the wake of controversy over successful appeal case that highlighted outdated and sexist views of a judge on rape in an intimate relationship
The Court of Appeal will be asked to give guidance on how the Family Court should protect victims of abuse and their children in cases where there are allegations of controlling and coercive behaviour and sexual violence
A group of leading women’s rights organisations (Rights of Women, Women’s Aid, Welsh Women’s Aid and Rape Crisis England & Wales) have intervened in a ground-breaking Court of Appeal case. They will raise the ways in which the Family Court is failing to protect victims of domestic abuse and their children due to the outdated views of judges, particularly where rape is concerned.
From 19th-21st January, the Court of Appeal will hear four joined cases where women are seeking to overturn decisions made in child contact hearings. The cases all raise issues about the way the court responds to allegations of controlling and coercive behaviour and rape.
This is the first time in 20 years the Court of Appeal has been asked to give general guidance on the approach to domestic abuse in child contact cases since the landmark case of Re L, V, M, H (Contact: Domestic Violence) in 2001 in which the Court set out guidelines for how such cases should be treated.
That case led to important changes to the rules about how domestic abuse is treated in child contact cases in the form of Practice Direction 12J (PD12J). It is now accepted that controlling and coercive behaviour is extremely harmful and can have life-long impacts on the women and children that experience it including, in the worst cases, leading to their murder.
PD12J sets out what the family court is required to do in any case where there is alleged or admitted domestic abuse to ensure a safe and supportive response for victims, including children. The cases within this appeal highlight various failures in the court’s implementation of PD12J.
The cases are being brought after the court was heavily criticised in January 2020 for relying on offensive views about sexual consent[i], and the Government’s Harm Report[ii] was published in June 2020.
The Harm Report concluded that there are systemic problems with how family courts deal with domestic abuse and other risks of harm.
Olive Craig, Senior Legal Officer at Rights of Women said today:
“Women’s experiences of domestic abuse are frequently ignored by the Family Courts and a culture change is long overdue. The evidence about the harm domestic abuse causes to victims and children is clear but at present the Family Court is failing to safeguard children by taking a pro-contact approach instead of focusing on the child’s welfare as the law requires. Women and children are being denied the protection they need as a result. This case is an opportunity to make clear to the Family Court that domestic abuse must be taken seriously and women and children must be protected from this harmful behaviour.”
Katie Russell, national spokesperson for Rape Crisis England & Wales said:
“Rape Crisis and its member Centres have long been concerned about the deeply harmful impacts the culture of the Family Courts has on adults and children subjected to sexual violence and abuse. Severely outdated views on rape and consent, betraying fundamental lack of understanding of the law on sexual offences on the part of family judges, plus the prevalence of sexist rape myths, too often retraumatise and lead to decisions that undermine the safety of women and children. This case presents an opportunity for victims’ and survivors’ voices to be heard and Rape Crisis hopes it will lead to the systemic changes needed to uphold their rights and welfare.”
Lucy Hadley, Head of Campaigns & Policy at Women’s Aid Federation of England, said:
“Survivors contact Women’s Aid on a daily basis to tell us about their concerns with the family courts and safe child contact arrangements. Far too often they report that the courts still take a ‘contact at all costs’ approach to decisions on child contact with a parent where there are allegations of domestic abuse. This undermines the safety of survivors and their children, ignores the impact of domestic abuse on them and can expose them to further abuse and harm. This landmark case is an opportunity to shine a light on what survivors have been telling us for decades, and the urgent reforms that are required.”
Gwendolyn Sterk, Head of Public Affairs and Communications, Welsh Women’s Aid said:
“Time and again we hear from survivors across Wales about ineffective and traumatic experiences within the family courts and child contact arrangements. Survivors report that the rights of them and their children to live free from abuse are not prioritized. It is vital that the failures to recognize or take seriously the abuse women and children are experiencing are addressed with urgency. Welsh Women’s Aid is keen to that this case offers an opportunity to change how the family court system responds to domestic abuse, ensuring its focus is on the safety and support of women and children that are experiencing abuse.”
[i] In the case of JH v MF  EWHC 86 (FC). For example see https://www.lawgazette.co.uk/news/high-court-condemns-leadership-judges-obsolescent-view-on-consent/5102818.article
[ii] Assessing Risk of Harm to Children and Parents in Private Law Children Cases https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases